A study released today found that the number of US pedestrians killed or badly injured while wearing headphones has almost tripled in the last six years.  Not surprisingly, most of the victims are teens or young adults.

More than half of the deaths involved pedestrians being run down by trains, and many involved incidents where the train or vehicle driver were sounding a horn trying to warn the pedestrian of the potential problem.

The last thing you would expect to happen is to have a wall fall on you while you were inside a building. That happened in this reported case.

Death comes in many forms, and this bizarre case is no exception. A 14-year-old student at a local high school was unexpectedly killed in an accident when a wall fell on him. He was doing pull-ups on the wall in his locker room that had initially been built in 1990.

Even though emergency response crews got to the scene fast, the young boy’s heart stopped before he could be taken to the hospital. He was later pronounced dead.

The accident report did not indicate what possible reasons there may have been for the interior wall to cave in on the boy. The boys in the room were not fooling around or doing anything else that would have caused a wall to fall. There was one other student in the locker room at the time of the cave-in and several others rushed into the room to start removing the heavy cement blocks from the boy’s body.

The police are going to be asking a lot of questions relating to this incident, not the least of which is whether or not the walls of the locker room were regularly inspected, if there had been any leaking or shifting of the building that may have affected the interior wall, and whether there was other work happening in the building that may have affected the wall.
If any of the answers to those questions comes back that the school was aware of other issues in the building that they should have known about and/or should have known would affect supporting walls on the interior, they may well be cited as an at-fault party for their negligence in maintaining the building’s safety. Another issue the investigation will also cover is whether or not the wall was designed and built correctly in the first place with the right kind of materials, and not slapped together with shoddy cement bricks that were not up to building code requirements.

Although it is an odd case, it is considered to be a wrongful death and as such, the boy’s family may wish to consult with legal counsel about what rights they have. Even though this is a difficult thing to consider, it is a wise move for the family, as it does, in some measure, assist with closure and may serve as a lesson to others to keep their buildings maintained with safety in mind.

If you have been in similar situation, or have been injured because you were in the wrong place at the wrong time, take the first step in seeking justice by calling an Austin personal injury lawyer. Accidents like this may look like one thing on the surface, but on closer inspection be something else entirely. An Austin personal injury lawyer knows this and will listen as you recount the details of how you sustained the injuries.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke LLP. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

Despite all the outcry and the increasing number of laws banning texting while driving, it’s a problem that’s getting worse, not better.

Yesterday, the National Highway Traffic Safety Administration released its first major study on distracted driving.  It found that at any one time, 1 in 100 drivers are using a hand-held device for texting, emailing or surfing the web, a number that was an increase of 50% over the prior year.

The study also found that twenty percent of drivers admitted to texting or emailing while driving.   That number increased to 50% of drivers when looking at the 21 to 24 year old demographic. 

Folks, this is a problem.  The study found that this type of distracted driving accounted for 3,092 deaths in 2010.  And the number of injuries were many times that.

If you read this blog, you know that this is something that I vent about all the time  (doing a quick search, I found over 40 prior posts on the dangers of texting and driving).  We need to understand the dangers being created by use of electronic devices.  There aren’t any emails or texts important enough to seriously injure or kill ourselves or others.

Andrew Cochran keeps a blog dedicated to the 7th Amendment — the amendment guaranteeing US citizens the right to a jury trial in civil cases.  Earlier this month, he had a post quoting Judson Phillips, a leader of the Tea Party movement. 

It seems that Mr. Phillips understands the role of the civil justice system in deterring bad behavior.  He writes:

The free market is a wonderful system. It produces amazing efficiencies and amazing wealth. The free market system has delivered more prosperity to more people than any other system. There is another beauty to the free market system that many people do not think about. The free market system punishes bad behavior. If I open a business and decide to sell something that is a really bad product, people do not come to my business. I have the incentive to produce a really good product because that way people will want to come to my business.

The civil jury system is a part of the free market. Our founding fathers thought enough of it to make it the 7 th Amendment to the Constitution. Jury awards are a part of the free market. They do not exist in a vacuum. They not only compensate someone for an injury but like so many other parts of the free market, they act to deter bad behavior.

If I am injured by a bad doctor or suffer some other type of injury or loss, I do not want the Federal Government telling me what my pain is worth. I want twelve citizens deciding justice for me.

Too few people recognize the importance of the tort system — civil lawsuits — in deterring bad behavior.  A few years ago, the Texas Supreme Court (all Republicans, by the way) explained that important role in the case of Roberts v. Williamson: 

The fundamental purposes of our tort system are to deter wrongful conduct, shift losses to responsible parties, and fairly compensate deserving victims. 

I have never understood why so many conservatives — hell bent on making society safer by strictly enforcing criminal laws — want to eliminate the civil justice system, which is just as important  in deterrence of wrongful conduct as the criminal system.

In fact, in many cases, the civil justice system may be a more important deterrent.  For example, routine car wrecks don’t often involve a criminal component, and if they do, it’s usually just a minor ticket.  They don’t really deter wrongful conduct.  On the other hand, the prospects of facing a huge verdict from reckless driving — that might deter wrongful action.

I don’t know whether the tea party will be enough to change the debate on this issue, but I’m at least thankful that the issue is becoming a source of some discussion.

This month’s issue of the ABA  (American Bar Association) Journal has an in-depth look at the Texas Worker’s Compensation System   (Insult to Injury:  Texas Worker’s Comp System Denies, Delays Medical Help).  The article discusses the reforms of the worker’s comp system, the insurance industry’s heavy hand in determining how the system plays out, and the insurance compny’s scheme to deny and delay legitimate claims. 

The article starts out talking about an injured Deputy in East Texas:

As Deputy Sheriff Ed Martin sat by his squad car in a fast-growing pool of his own blood, he called his wife and woke her at 3:30 a.m. He knew he might die from the point-blank shotgun blast that greeted him moments earlier when he knocked on a door for a 911 call in a tiny east Texas town called China.

“It’s pretty bad and I don’t know how it’s gonna turn out,” Martin told his wife as he awaited a helicopter medical evacuation. “Get the kids and meet me at the hospital.”

When they arrived, Martin was on a gurney and covered with a white sheet splotched red. His wife clutched their sleepy 2-year-old daughter to her chest as their sons, 6 and 10, stood at her side.

“I know it was tough for them,” Martin says, retelling the story of that night in June 2006 in the flat monotone of cop-speak. “But I wasn’t sure if I’d make it through surgery and I wanted to at least tell them ‘Hello’ and ‘I love you.’ ”

Doctors say Martin’s life was saved by his ballistic vest and the swift trip to the hospital in Beaumont, near the Gulf Coast and the Louisiana border. But the blast vaporized the skin of his inner arm down to bare muscle and tendons, and tore out the main artery.

A couple of weeks later, Martin got a phone call from an insurance adjuster handling his workers’ compensation claim. He was told the $7,300 helicopter ride was “not medically necessary” and likely would not be covered.

From representing a number of people who have been injured on the job, I can tell you that the experiences outlined in the article are spot on.  For example, I currently represent a worker injured in an on-the-job car wreck.  He went to a surgeon recommended by the insurance carrier, and the surgeon recommended that my client needed surgery.  The insurance carrier denied the claim, and asked the client to be reviewed by another doctor for a second opinion.  That doctor agreed that surgery was necessary as a result of the on-the-job injury.  But the worker’s comp insurance company still refuses to pay the claim, instead, sending the client to another doctor.

Unfortunately, I fear that the changes to the workers comp system are only a pre-cursor to how insurance companies and the legislature treat all injured Texans.  Every legislative session we see new proposed laws that seek to limit the rights of people injured by others, and it seems that every Friday brings a new Texas Supreme Court decision that does the same.

I only hope that people realize the pendulum is swinging too far in favor of insurance companies and that we continue to protect those without a voice.

Stage collapses resulting in deaths have dominated the news lately, and are prompting the filing of wrongful death lawsuits.

This reported case was filed by the family of a woman killed by a stage collapsing on her while she was attending a concert. The 42-year-old woman was treated to front row seats for the event as a birthday gift from her life partner, a 49-year-old woman.

A brutal wind came up suddenly and the stage collapsed on the women, severing the 49-year-old’s toe, causing severe bruising, a broken clavicle and many deep wounds needing stitches, and killed the other woman. The family, which included the 17-year-old daughter of the dead woman, chose to file a wrongful death lawsuit on the basis that they felt this tragedy could have been prevented. Evidence suggests that the stage was flimsy from the start when it was being erected and that those putting it up should never have been allowed to finish setting it up. In other words, it was an accident waiting to happen.

Screams tore through the grounds when the wind hit, and the stage lifted off its foundation like it was made of matchsticks. It may as well have been made of matchsticks the way it crumpled and burst apart. Those sitting in the front rows had no place to go and nowhere to hide for protection. They just had to hope they made it out ok.

The weak and shoddy stage was just the tip of the iceberg in the chain of events that led to the 42-year-old’s death. Just prior to the devastating collapse, the national weather service for the area had issued warnings of impending severe weather – severe enough that the concert ought to have been rescheduled. The facts were clear and indicated that mixing an outdoor concert with ugly weather was asking for trouble. Attending emergency medical personnel could not understand the venue continuing the event when they had knowledge of the approaching storm.

Is this a case of negligence? Quite likely, as this kind of accident was not unforeseeable, nor was it an unpredictable, off the wall, strange thing that just happened. Based on the poor construction of the stage in the face of a catastrophic storm with the potential to kill, someone will be held responsible.

Have you been in a similar situation and do not know where to turn? Make your first call to an experienced Austin injury lawyer and find out what your rights are, how the evidence is preserved, what damages may be claimed and how a trial may proceed.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke LLP. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

Playing sports is a right of passage for many kids. But kids can suffer serious head trauma and jeopardize their future.

It goes without saying that playing sports is a big part of going to school. Volleyball, basketball, football, hockey, and soccer are some of the most popular sports. Kids risk sustaining serious injuries if they have a concussion while playing sports. A pattern of concussions during youth has an impact on cognitive functions later in life. Those who continue to play sports face the reality of dying if they get hit once too often.

Although head injuries seem to be quite prevalent in just about any sport, there is not a lot being done about it. It is talked about and many people worry; yet, there is not much in the way of training and education about the seriousness of head injuries and prevention.

New Jersey recently introduced a bill into the legislature that would mandate athletic coaches to actively participate in a head injury prevention training program. It is about time. Kids are our future, and we need to not only protect them from serious head injuries, but train and educate them about what traumatic brain injury is, how to recognize it, avoid it if possible and how to deal with it should they get hit. With enough people supporting the bill in New Jersey, the program may start to be utilized in other states, even Texas.

While it is true that anyone may sustain a head injury, athletes are more likely to get thumped in the head because of the nature of the games in which they participate. Most often, head injuries are the result of a blow to the head or even being violently shaken. Any blow to the head has the potential to result in a concussion, which is an injury that alters the way the brain works. Even if the injury is mild, there are still long-lasting repercussions. Moderate to severe injuries have the potential to lead to a vegetative state and death.

Will the New Jersey bill do what it is intended to do? That is a tough question, but so far it looks like it may be off to a good start. However, the bill excluded cheerleaders because what they do is not considered to be a sport, but is classified as an activity. That is odd, given the well-documented fact that cheerleaders many protests.

For instance, many will recall the pyramid stunt and the media frenzy in 2006 when Kristi Yamoaka sustained a fractured vertebra after she fell from a human pyramid and hit her head doing this stunt. She suffered a concussion and badly bruised a lung. Although she eventually recovered, not everyone is as lucky. Thankfully, the protests paid off and cheerleaders were subsequently included in the bill. If every state had a bill like this, head trauma incidents might just decline.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke LLP. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

I’ve represented a number of people in lawsuits against their builders.  Several years ago, one of my clients and I half-joked that we were going to write a book together about avoiding bad contractors. 

We never got around to writing the book, but I do want to share some of the tips.  Because while tragedies oftentimes bring out the best in people looking to help others, they also bring out the worst in people — those that want to take advantage of the situation.

Here are some of my tips.

1.  RESEARCH YOUR POTENTIAL BUILDER.  First, ask for recommendations from those you know and trust.  Once you get those recommendations, research the options.  Do the traditional research by asking for references & checking up on those references.  But also go that extra step and look online to see what reviews or complaints your builder might have out there.  Given the large investment you’re about to make, it may make sense to even pay a little for services such as Angie’s List.

2. MAKE SURE YOU UNDERSTAND THE CONTRACT.  Contracts are confusing, and the construction contract will likely be for more than $100,000.00.  That’s a lot of money.  Make sure you understand whether you’re entering into a flat fee contract or a cost-plus contract.  Make sure you understand the scope of the work that is included in the contract (as opposed to what might be upgrades or additional charges).  Make sure you understand the warranty that the builder may be offering.  A little work up-front can prevent huge problems later.

3. DON’T PAY THE CONTRACTOR TOO MUCH UP-FRONT.  We sometimes see cases where the profit in the job is in the earlier part of the construction so the builder, satisfied with those early profits, walks off the job.  You need to make sure that the negotiated payments provide an incentive for the contractor to stay on the job. 

4. MAKE SURE THE CONTRACTOR IS PAYING THE SUBCONTRACTORS.  Under Texas law, if the contractor doesn’t pay the subcontractors, the subcontractors can put a lien on your house.  You can minimize the risk of that happening by requiring the contractor to provide you lien releases from the subcontractors with each draw request.  Lien releases are formal documents from the subcontractors saying that they have been paid through various points of the project.

5. CONSIDER HIRING AN INSPECTOR TO COME INSPECT THE CONSTRUCTION PROCESS.  This is an extra cost, but it’s worth it to make sure the house is being built properly.  Again, it is worth paying someone to make sure that the framing is done right, that the windows and other penetrations to the home are flashed properly, etc because those types of defects can cause a lot of damage and be expensive to repair later on down the road.

These aren’t all the tips, certainly, but if you follow these instructions, I think it’s a little less likely that you’ll be taken advantage of or be the victim of shoddy workmanship.

Yesterday’s Austin American Statesman featured the tragic story of Carmen and Javier Chaparro, recent victims of the Bastrop County fires.  The Chaparros seem like great people.  Javier is a professional musician, and Carmen is a teacher who works with special-needs kids.  But sadly, after the fire, the Chaparros discovered that they didn’t have enough insurance to cover the losses of Javier’s cherished $50,000 violin or other instruments and his recording equipment.

While that’s a hard lesson to learn, the Chaparros are in good company.  For years, we have represented people in insurance claims (including my just finishing up a large lawsuit against Safeco stemming from a fire at my client’s home), and I would estimate that at least 75% of those clients don’t have enough insurance to fully cover their losses in the event of a tragedy.

With homeowner’s insurance, you are buying two types of coverage.  The first coverage, dwelling coverage, covers the cost to repair or rebuild your home, depending on the extent of the damage.  The second coverage, contents coverage, covers the cost to replace the contents of your home — your personal belongings that are destroyed.  Most people have both of these coverages too low.

For dwelling coverage, the fact is that it’s just expensive to build in the Central Texas areas, and most people don’t have an idea of what it would cost to rebuild their home.  Insurance companies have formulas they use to estimate those costs, but often those estimates are wildly inaccurate. 

My family is a perfect example of that.  Five years ago we did a fairly extensive remodel of our home.  During that process, I talked to my insurance company about increasing the limits of our dwelling coverage.  The insurance agent came back with an estimate of what it would cost to completely rebuild our house should something happen.  But the estimated cost was less than what we had spent to do a partial renovation (and that included my wife and I doing much of the finish work — painting, installing flooring, installing trim work, etc).  I knew that there was no way we could rebuild the entire house for the amount suggested.  (And our house is small — approximately 1,500 square feet after our addition — the differences will only increase with larger houses.)  Fortunately, with the help of our builder and my dad (who is in the commercial construction industry) we were able to get an amount that would help us rebuild in the event of a disaster.

But most people don’t have that luck and luxury, and they end up with too little insurance.  Do what you can to make sure you’re not in that boat.  It’s worth paying a small amount to get an opinion from a builder or someone else to make sure that your insurance is enough to rebuild your home.

The same goes for contents.  Most people are underinsured on their contents coverage because they don’t really take the time to look at everything they own.  People own a lot of “stuff” these days, and replacing all that stuff is expensive.  When you’re renewing your insurance, take the time to really look at what you own, and be honest in what it might cost to replace it.  (Also, just in case you’re in something like this, document what you have.  Take five minutes to run through the house with a video camera, and then keep the tape or disc somewhere else, like an office or another family-member’s home, so you can access it if something happens to your home. That five minutes can save you hours and potentially tens of thousands of dollars at a later time.)

Also, let me add that it’s important to know what coverage you are buying.  Several years ago, the Texas Department of Insurance required homeowner’s insurance companies to write standard policies  (generally, 95% of the policies were called HO-B policies).  Because the policies were standard, a homeowner could shop around from insurance company to insurance company and know that they were comparing apples to apples.  But, in a huge disservice to homeowners, the insurance department decided to allow companies to write their own policies.  Now, when the average homeowner is calling around to different agents to get quotes, it’s almost impossible to know whether you’re getting quotes on the same types of policies.  Most often, you’re not.  Now, every policy is different.  That’s why it’ so important to sit down with your insurance agent and tell them about your circumstances, and get them to explain the policy to you.  I know it’s boring  (and I do it for a living), but it’s the only way to really make sure you’re protected.

Being underinsured isn’t limited to homeowner’s insurance.  I’ve repeatedly written that people need to protect themselves in the auto insurance context by buying uninsured/underinsured motorist coverage and personal injury protection coverage when they purchase auto insurance. (You can also read another post on the need for this coverage:  San Marcos DWI wreck shows need for uninsured/underinsured motorist coverage.) 

While much of our time is spent fighting insurance companies, we do recognize that it has a place.  Please learn from the Chaparros’ (and my clients’)  experience to make sure that you are properly covered by your insurance should you need it.

I’ve handled a number of homeowner’s insurance claims.   With the horriffic fires of the last two days, I wanted to at least make a post and provide a little information for those victims who are faced with making fire insurance claims.  Fortunately, the potential claims you’re facing are not quite as complicated as most homeowners’ insurance claims.

Most homeowners’ insurance claims will have two parts — real property claim and a contents/personal property claim.

The real property claim is for the damage to your actual structure —- the dwelling or home.  Generally, when you’re making a claim there are fights with the insurance company about the extent of repairs necessary from the event and the cost of those repairs.  Fortunately for you, most fire victims are able to avoid this fight.  Section 862.053 of the Texas Insurance Code provides that when there is a total loss by fire, then the full amount of the policy limits are due.  In most cases where there is extensive damage, there isn’t an argument about whether the home is a total loss, and thus, the insurance company is required to pay the full amount; there isn’t any quibbling about scope of repair, costs to make those repairs, etc.  The insurance company should just pay the full amount to you.

The personal property/contents claim is the claim for your furnishings and possessions.  That includes furniture, clothing, household items, etc.  Sadly, most people are underinsured when it comes to contents — they just don’t really have a good estimate about the value of the items in their houses.  As a result, when fires completely destroy a home, most homeowners will be owed the full amount of coverage provided by their policy.  You may have to jump through some hoops to get it — making an inventory of what you lost, estimating costs, etc.  But in most situations, you will not have any difficulty identifying enough losses to justify full payment.

To all the victims, good luck in going forward.  You are certainly in our thoughts and prayers as you try to rebuild your lives.